Houston's 14th Court of Appeals rules for medical malpractice plaintiff in expert dispute

 

Memorandum opinion provides insight on what makes an expert report adequate under Texas law

 
August 23, 2018

Houston’s Fourteenth Court of Appeals entered a memorandum opinion today that continues a trend of good news for Texas medical malpractice plaintiffs. The case is styled Darnell Pettway, M.D. v. Maria Olvera, Case No. 14-17-00532-CV, which was on appeal from the 281st District Court, in Harris County, Texas.

When reading well-reasoned cases like this, I cannot help but laugh a little about the irony of tort reform advocates complaining about the cost of frivolous cases. I have yet to accept representation of a frivolous case on behalf of a plaintiff but have certainly a lot of frivolous defenses and arguments by defendants.

Upon reading the Pettway opinion, I suspect that the appellate panel saw what is obvious to me—the defense lawyers for a physician were wasting time and money on a frivolous defense and appeal of a trial judge’s correct ruling over a frivolous objection by the defendant.

At the trial court level, the dispute arose when a patient went to the emergency room at Houston Methodist West Hospital, which is located at 18500 Katy Freeway, Houston, TX 77094. She sprained her ankle and the emergency physician, Dr. Pettway, ordered crutches, but did not show her how to use them.

Hospital staff provided the patient with crutches and left her unsupervised. The patient did not know how to use them, and when she attempted to walk, she had a nasty fall on the concrete floor. When she fell she injured her head, shoulder, and neck. The patient was diagnosed with a concussion, required shoulder surgery, and needs neck surgery.

The unique Texas expert report requirement

As a Houston, Texas medical malpractice attorney, I know that Texas has strict requirements on medical malpractice plaintiffs. One of these is found in Texas Civil Practice & Remedies Code Chapter 74, which requires plaintiffs to serve an expert report within 120 days after each defendant appears and files an original answer in the lawsuit.

Most of the time, expert reports are written and signed by a physician. Sometimes, it is appropriate to use a nurse or other non-physician healthcare provider, but, in all cases, a physician report is necessary to establish that any negligence caused injury or harm to the patient.

The legal requirements for a Chapter 74 expert report are strict. The report must identify the standard of care (what should have been done), how the standard of care was violated, who did it, and how it caused damages to the patient.

After an expert report is served, defendants have 21 days to file objections to the adequacy of the expert report. For many years after the tort reform statute became law, in 2003, most defense lawyers filed objections to every expert report served by a medical negligence plaintiff. The stakes are high. If the trial court ultimately finds that the initial report is not adequate, then the case must be dismissed.

Some defense lawyers file objections that say that the standard of care or how it was violated is not well-defined. Other objections focus on causation, usually arguing that the opinion of the expert is conclusory, meaning it does not explain how the negligence caused harm.

Defendant objections to expert qualifications

An entirely different type of objection is over the qualification of the physician writing the report. Many defense lawyers have essentially asked trial and appellate courts to rule that the only a physician from the same specialty is qualified to criticize the medical care provided by a defendant. That is simply not the law in Texas. Rather, the question is whether the expert has experience directly relevant to the issues in the case.

In the Pettway case, the plaintiff timely served an expert report by a board certified orthopedic surgeon. In his report, the expert explained that, as an orthopedic surgeon, he not only orders crutches for patients with injuries similar to those of the plaintiff, but also instructs patients on the proper, safe use of them.

The defense lawyer for Dr. Pettway objected to the plaintiff’s expert report and filed a motion to dismiss, arguing that the orthopedic surgery expert was not qualified to offer opinions regarding an emergency medicine physician.

The Fourteenth Court of Appeals flat-out rejected these absurd arguments. Hopefully it will give defense lawyers pause before filing more frivolous objections to Chapter 74 expert reports.

The appellate court recited familiar Texas legal precedent, including one of its own prior opinions that held that a doctor serving as an expert does not need to be a specialist in the particular branch of the profession for which the testimony is offered. That case is styled Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

Instead, the standard is whether the expert has knowledge of the specific issue that would qualify him or her to give an opinion on the subject. In other words, the statutory requirement of Chapter 74 focuses on the condition involved in the claim, rather than the physician’s medical specialization.

In the court’s analysis, the orthopedic surgery expert’s opinion is boiled down to that the patient fell while using crutches because Dr. Pettway did not instruct her how to use them or supervise her training with the crutches. The expert’s report stated that he ordered crutches for patients with injuries similar to those of this patient, trains patients on how to use them, and supervises the safe environment.

The court concluded that, “Pettway frames the specific issue in this case too narrowly by contending that [the expert] must be qualified in emergency medicine. . . . Rather, [the expert’s] report demonstrates his knowledge, skill, experience, and training regarding the specific issues before the court.”

The court’s analysis did not end there. The defense counsel made another objection that has been soundly rejected by appellate court precedent. The objection complained that the plaintiff’s expert proposed a standard of care that is “impractical and impossible” in an emergency department setting.

The Fourteenth Court of Appeals swiftly disposed of this frivolous objection, as well. The opinion notes that at the preliminary stage, trial courts are not to look at whether the standards of care articulated by a Chapter 74 expert appear reasonable. Instead, courts look at the report to determine if it contains specific information about what, in the expert’s opinion, the applicable standard of care required the defendant to do differently.

We are here to help

I trust that my discussion of this case shows you that medical malpractice law in Texas is a bit complicated. That is why it is important for people injured by the negligence or mistake of a physician, surgeon, nurse, or hospital hire an experienced Texas medical malpractice lawyer to investigate a potential case.

Competent Texas medical malpractice attorneys know the ins and outs of Chapter 74, how to work with medical experts to obtain proper reports, and how to defend those reports from objections and motions to dismiss filed by defendants.

The experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.

http://www.painterfirm.com/contact.asp

All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.

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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.

Robert Painter

Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.

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